2025 (12) TMI 1382

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.... and • Mouda Super Thermal Power Project, Maharashtra. 2. These goods were not directly sold to these Power Project companies but were sold to those contractors (M/s. BHEL, M/s. NTPC, M/s. Doosan Power System India Pvt Ltd, M/s. Lloyds Insulations (India) Ltd etc.) who were designated to develop the aforesaid power projects. The contractors in turn used these goods to develop the power projects. These goods were cleared by the Appellant without payment of excise duty by availing benefit of the exemption available under Sl. No. 336 of Notification No.12/2012-CE dated 17.3.2012 3. The details of clearances so made, and the fact of availing exemption was disclosed in the monthly ER-1 returns filed by the Appellant. The jurisdictional excise officer was also intimated regarding these exempted clearances. The POs, Project Authority Certificates and Certificates issued by Ministry of Power were also submitted for the purpose of keeping record and verification. 4. The department issued SCN dated 02-11-2018 proposing a demand of excise duty of Rs.4,91,77,740/- on 25,98,595 Kgs of finished goods cleared during the period involved by alleging that the Appellant is not e....

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....here is no requirement that goods on which excise exemption is being claimed should get classified (fit into the description) under Chapter 98 of the Customs Tariff Act, 1975. There is no Chapter 98 in the excise tariff. The only requirement is that such goods should be required for setting up of Mega Power Project specified in List 32A of the Notification No.12/2012-Cus dated 17.3.2012 and certified by an officer not below the rank of a Joint Secretary to the Government of India in the Ministry of Power. Reliance in this regard is placed on the aforesaid ruling in the case of JSW Steel (supra). As per Sl. No. 507 of the Notification No.12/2012-Cus dated 17.3.2012, goods required for setting up of any listed Mega Power Project certified by concerned officer will be eligible for custom duty exemption. Had the goods supplied by the Appellant was imported, it would have been eligible for benefit under Sl. No. 507. In such circumstances, excise exemption cannot be denied to the Appellant. 10. In the instant case, there is no dispute that Power Plants for which goods have been supplied are covered under List 32A. Also, the concerned officer has given necessary certification requ....

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....tional duty leviable under section 3 of the said Customs Tariff Act when imported into India. ^176[Provided that if the goods when imported into India are so exempt from the said duties of customs subject to certain conditions prescribed under a notification issued under the Customs Act, 1962, then such conditions shall, mutatis mutandis, apply for the purposes of this exemption.] 19. From this Notification, it can be observed that it covers all goods under 'Any Chapter', when they are supplied against the International Competitive Bidding. The second condition is that such goods should be exempted from payment of Customs Duty and Additional Duty of Customs if they are imported. We find that Sl. No. 557 of the Notification No.12/2012-CUS dated 17.3.2012, provides for custom duty exemption. 20. One sample Project Authority's Certificate about the ICB is reproduced below : 21. In the same certificate, the details of the sub-contractor are also mentioned, as can be observed from the following extract : 22. Therefore, it is clear that the appellants being sub-contractor, is directly being mentioned by the Project Authority's Certificate. Therefore, they cannot ....

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................. 11. So also the Tribunal in the case of Kent Introl Pvt Ltd Vs CCE, Nashik 2014 (301) ELT 84 (Tri-Mum) has held that when the supply of goods are made to the main contractor who has participated in the International Competitive Bidding and has been awarded the contract; the sub-contractor is also eligible for exemption under Notification No.6/2006-CE dated 01.03.2006............. The Hon'ble High Court of Bombay 2016 (331) ELT 77 (Bom) has upheld the above decision of the Tribunal. 12. The Tribunal in the case of Toshniwal Indus Pvt Ltd Vs CCE, Jaipur II 2017 (5) GSTL 179 (Tri-Del) has taken a similar view, which held that the sub-contractor is also eligible for the Benefit of Notification............................ 13. From the above, we hold that the view taken by the Adjudicating Authority that the goods are not eligible for exemption for the reason that the appellant is only a sub-contractor is not justified." "14. The second ground on which the Benefit of Exemption has been denied is by alleging that the appellant has not satisfied Condition No.19 of the Notification No.6/2006. The condition has already been noticed a....

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....efit of Notification No.6/2006.................. 15. From the above, it is clear that the supply of goods required to set up mega power project is covered by Chapter Heading 98.01. The Project Authority Certificate issued to the appellant clearly states that the goods have been supplied for Nagarjuna Thermal Power Project, Udupi. This being the fact, the order passed by the adjudicating authority that M S Rebars do not fall under CH 98.01 is erroneous and not supported by any basis. 16. In view of the above, we find that the denial of exemption is without any legal or factual basis. We hold that the appellant is eligible for exemption under Notification No.6/2006-CE dated 01.03.2006.........................................." 24. In the case of CST Ltd vs. Comm. of Cus. & C.Ex., Hyderabad-I, 2007 (217) E.L.T. 513 (Tri. - Bang.), the Tribunal has held as under : "6......... The appellants are a sub-contractor of M/s. BHEL. M/s. BHEL is executing the Mega Project for Kahalgaon Super Thermal Power Project by International Bidding. The appellants have submitted all the relevant records. The appellants are also found in the list of sub-contractors. Sinc....

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....्जा निगम प्रा० लिमिटेड MEJA URJA NIGAM (P) LIMITED 141 Rut. No. : MUNPL/2012-13/PAC-4/121/184 pramine / Allahabad foris / Date ..... 21.12.2012 PROJECT AUTHORITY CERTIFICATE (PAC) I, Vinod Sharma, Chief Executive Officer am duly authorized to issue the Project Authority Certificate. I hereby certify that M/s. KC Cottrell Co. Ltd., Korea have been awarded a contract for supply of goods of value, quantity and Description mentioned below for total value of INR 150,56,49,000/- against Contract Agreement (COA) No. MUNPL/C&M/Contract/12-13/SC/COA-0019 dated 21ST June 2012. l'is certified :- Dhar supplies-under-contract-No ..... Daled ... mare-to-be-made-in-India-to-a-project Inanced-by-multilateral-of bilateral-Agencies/-Funds-namely -............- which-has Deen_notified_by-the-Department of Economic Affairs, Ministry of Finance wow-their-Reference-No ..... Dated ----- and-the-same-is-underthe procedure-of-International-Competitive-Bidding-in-accordance-with-the-procedure-of the above-mentioned Agency/Fund, legal-agreement-of-which-provides-for-tender wation-without-i....

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....import content of the order is Rs 67, 20,000/- (Rs. Sixty Seven Lac Twenty Thousand Only). Deleted. That-supply-of-the-goods-to-projects-funded-by-LIN-agencies-in-accordance with the provisions-of-paragraph-8-2(i)-of-the-Policy .- and-that-the-import-content-of-the-erder is-R6-(Figures-and-words That-supply-of-goods-to-specified-nuclear-power-projecte-under-the-procedure-of Competitive-Bidding-is-made-in-accordance-with-the-provisions-of-paragraph-8.20)-of Policy,-and-the-import-content-of-the-order-is-Re-(Figures-and-werde-) Bis further certified that the Contract Agreement (COA) No. MUNPL/C&M/Contract/12- 3/SC/COA-0019 dated 21ST June 2012 in respect of supply of Electrostatic Precipitator Package for Meja Thermal Power Project (2X660 MW) has been Awarded to M/s KC Cottrell Co. Ltd., Korea as the Indian / Foreign main contractor and M/s ............... are the sub-contractor(s), whose name is also included the main contract. The description, quantity of the goods as described below to be applied to us directly by the sub-contractor or to be supplied by the sub-contractor the main contractor is shown in the main contract and is in accordance with the Devant Policy /....